Each year, in April, a lot of industry attention is directed to fair housing and the Act that emerged as part of the Civil Rights Act of 1968, which was signed just six days after the assassination of Martin Luther King Jr. While it’s important to understand the rules and regulations that make up the federal Fair Housing Act, in our area, the focus is on California’s Fair Employment and Housing Act (FEHA). It’s more inclusive, expands the protected classes under California law, and takes a broader application of the law.

Red Flags and Pitfalls

Our world looks very different today, and it’s become increasingly challenging for real estate professionals to stay on top of what constitutes discrimination in selling or renting properties. What might seem innocuous in what you say to a prospective buyer or tenant may, in fact, get you into serious trouble. Worse, the agent or broker can be held liable for fair housing violations by the seller or landlord.

Here are some things to be vigilant about when working with a seller or landlord:

You cannot say anything that would encourage, or discourage, certain types of people living in the property. For example, you cannot tell someone who has kids that this is not a good house to buy because it’s in an unsafe neighborhood.

You should not solicit or provide personal information in the hopes that it will influence a seller or landlord. For example, if there are multiple offers on a house, often buyers or tenants are encouraged to submit a letter and pictures of their family. If a family is black or a couple is gay and their offer isn’t accepted, they may question whether race or sexual orientation played a role in the decision. The decision to sell or rent a home should be based on objective criteria.

Be careful about how you respond to questions from potential buyers or tenants that could be deemed discriminatory. For example, if a Jewish family is looking at a property and asks if this is a Jewish community, you cannot answer that. This is a protected class and it could be interpreted that you are not considering non-Jewish potential buyers. The seller should state that as an equal opportunity housing provider, they entertain any type of offer.

Do not include occupancy limits in advertising or other communications that reach prospective tenants. For example, if a prospective tenant looks at a property and says there are five people in the family, you cannot say that the property may not comfortably house that many people. You are violating the Fair Housing Act because occupancy is related to Familiar Status: families with children under the age of 18 are a protected class.

Be very cautious when dealing with buyers or tenants who have emotional support animals. These fall under disabilities and the regulations in FEHA about physical or mental disabilities. This is a protected class and you must make reasonable accommodations against current regulations regarding the presence of an animal. For example, if a landlord has a “no pet” policy and a prospective tenant says he or she has anxiety and an emotional support animal, the owner has to reasonably accommodate this. Service and support animals come in many breeds. If a landlord has an insurance policy that does not cover pit bulls, for example, s/he has to ask the insurance provider for a waiver because of fair housing accommodation. Note: the emotional support animal can be any type of animal, even a rat or a bird.

Consequences

“California makes it very easy for someone who feels discriminated to file a lawsuit,” says Amanda Byun, staff attorney for CAR. “They simply have to get in touch with the office of the Department of Fair Employment and Housing, and there are a number of nonprofit housing councils who are also available as resources and advocates on the prospective buyer or tenants behalf. They can bring an action against the owner or seller as well as the broker or agent – all are held liable. Real estate professionals may be sued for monetary damages for emotional distress, as well as statutory, civil, and punitive damages, and victims’ legal fees.”

Fair housing is a complicated area of the law and there are both federal and state laws that apply, as well as local ordinances. You are not expected to be an attorney. If your clients have questions, they should seek legal counsel. Remember, if something doesn’t feel right, talk to an attorney yourself. REALTORS, you may also call the CAR legal hotline.